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Last updated: November 2023
Suggested citation: Scollo, M. 11.B Licensing of tobacco sellers. In Greenhalgh, EM, Scollo, MM and Winstanley, MH [editors]. Tobacco in Australia: Facts and issues. Melbourne: Cancer Council Victoria; 2021. Available from http://www.tobaccoinaustralia.org.au/chapter-11-advertising/
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Some businesses sell products or services that pose risks to the public. A government may require such businesses to obtain licenses so that it can maintain some level of oversight over the number, type and location of sellers and to facilitate compliance with any applicable laws. 1
Tobacco products are addictive and cause premature death. Up to two-thirds of all deaths among long-term consumers can be attributed to smoking. 2 More than 20,000 Australians die prematurely each year due to smoking, and tobacco use is estimated to have cost the Australian economy more than $136.9b in 2015-16. 3 Tobacco licensing can help ensure that businesses that sell tobacco products are complying with all relevant laws, and can facilitate communication between health authorities and retailers. 1, 4-6
11B.1 Types of licences
Licencing can take one of several forms, 6 for example:
Notification/registration: Notification/registration requires businesses to provide information about themselves to a specified agency. However, registration does not impose restrictions or conditions on the business.
Accreditation/certification: Accreditation schemes are essentially non-mandatory licences. Businesses must comply with minimum standards in order to be accredited, but lack of accreditation does not prevent them from partaking in the business activity.
Negative licensing: Negative licencing systems allow businesses to operate without a licence or permit, but they face bans if they seriously breach required standards. These systems are reactive rather than proactive, so they rely on external parties to report breaches. As no fees are paid to obtain a licence, they also do not raise money for education and monitoring programs.
Positive licensing: Positive licencing requires prior approval for conducting business activities, and adherence to minimum standards.
Public health agencies believe that positive licensing is generally the most appropriate form of licencing for those involved in sales of tobacco products. 1, 4-6
Governments in many parts of the world have instituted licenses of businesses involved in the tobacco trade, from tobacco farmers, commodity brokers, warehouse operators, importers, wholesalers and retailers.
11B.2 Current licensing requirements in Australia
Any business seeking to grow or deal in tobacco seed, plant or leaf or to manufacture tobacco goods in Australia would be required to hold a licence. 7 Any business manufacturing tobacco products in Australia would be required to pay excise duty on those products—see Chapter 13, Section 13.2. To produce, manufacture or store excisable tobacco products without an appropriate licence would be an offence under the Excise Act 1901 and criminal penalties could apply. 7 Permits are required to import cigarettes, smoking tobacco and waterpipe tobacco for sales in Australia. 8 In some Australian states, wholesalers and retailers must also be licensed.
11B.2.1 Growers and dealers
There has been no tobacco grown in Australia since the early 2000s (see Section 10.1). As of November 2021, no-one in Australia has a licence to grow or deal in tobacco seed, plant or leaf, either for commercial sale or personal use. The Australian Taxation Office advises that such licences would be subject to strict criteria and any applications would be judged taking into account
- physical security of the premises
- protection of the revenue
- whether there's a market for the goods. 7
11B2.2 Manufacturers
Since 2015, there has been no legal tobacco manufacturing occurring in Australia. A manufacturer licence for tobacco, were one to be granted, would authorise a business to:
- manufacture or produce the excisable tobacco goods specified in the licence
- store products that would be used in the manufacture or production of the excisable tobacco goods. 7
11B.2.3 Importers
Importation of tobacco in Australia is strictly controlled through the issuing of permits.
Since 1 July 2019, regulation 4DA of the Customs (Prohibited Imports) Regulations 1956 prohibits the import of certain tobacco products into Australia unless permission has been granted prior to importation or an exemption applies.
The tobacco products that require import permission include:
- cigarettes
- shisha/molasses tobacco
- loose leaf tobacco for use in pipes or roll-your-own cigarettes
Prospective importers who do not have an Australian Business Number (ABN) or an Australian Company Number (ACN) may need to apply for a Customs Client ID (CCID) either through a licenced customs broker or by completing Form B319 Registering as a client in the Integrated Cargo System. A CCID allows the Department of Home Affairs to be able to identify importers and their electronic communications through the Integrated Cargo System (ICS). This includes import declarations. 8 Conditions include the following:
- tobacco products may only be imported through air or sea cargo and cannot be imported through international mail (post)
- tobacco products imported for personal use must not be sold, distributed, supplied or exported
- where commercial imports of tobacco products are to be sold within Australia, the sale of the tobacco products must comply with the Tobacco Plain Packaging Act 2011
The prohibition on imports does not apply to the following goods:
The following tobacco products are approved for importation into Australia without the need to obtain a permit:
- above the duty-free allowance and imported by passengers or crew of a ship or aircraft arriving in Australia if the person is at least 18 years of age. The products must be declared to the Australian Border Force on entry into Australia and duty paid on importation;
- imported as part of the Unaccompanied Personal Effects (UPE) by passengers or crew of a ship or aircraft arriving in Australia if the person is at least 18 years of age. The products must be correctly declared and duty paid on entry;
- imported for the purposes of transhipment to another country. The products must be correctly documented on the relevant cargo report and must not leave customs control. 8
11B.2.4 Excise equivalent goods warehouse
Excise equivalent goods are imported alcohol, tobacco and fuel that—had they been produced or manufactured in Australia—would have been subject to excise duty.
Businesses are required to apply to the Australian Taxation Office for customs warehouse licences if they:
- intend to store imported tobacco products in a warehouse or
- are an operator of one or more warehouses and at least one of those warehouses stores tobacco (or any other excise equivalent good). 9
Duty free stores or warehouses exclusively used to supply tobacco products to aircrafts’ stores or ships’ stores are also subject to customs regulations 10, 11 and may also need to be licensed.
11B.2.5 Wholesalers and retailers
In Australia, tobacco retailers require a positive licence in all states except New South Wales, Queensland, and Victoria (see Table 11B.1). Retailers and wholesalers will be required to hold a licence in Queensland from 1 st September 2024. Wholesalers must also be licensed in the Australian Capital Territory, the Northern Territory and Western Australia. Some states have also included e-cigarettes in their tobacco retail licencing schemes, or introduced separate restrictions regarding the sale of e-cigarettes—for a comprehensive overview of the legal status of e-cigarettes in Australia, see Section 18.13). Further details of the provisions of each licensing scheme are set out in Table 11B.2.
Table 11B.1 Tobacco retail licencing schemes in Australia (as at October 2023)
✓ = required ✗= not required
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ACT
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✓A person may apply for a “wholesale tobacco merchant’s licence” or a “retail tobacconist’s licence” with the prescribed application fee. [i]
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Applying in September to November - $595.00
Applying in December to February - $446.00
Applying in March to May - $298.00
Applying in June to August - $149.00
Renew a tobacco licence - $595.00
As of 27 April 2022, there is no cost to a Retail tobacconist licence for Community Pharmacy Licensees that sell nicotine vaping products.
Application/ Renewal made by an authorised medicines wholesaler - $0
Application/ Renewal made by a community pharmacy - $0 [ii]
Common expiry/ renewal time of 31 August (following grant of the licence). [iii]
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✓All ‘smoking products’, including tobacco products, ‘personal vaporisers’ and ‘personal vaporiser related’ products require a licence to be sold in the ACT. [iv]
The same licence application/renewal process, payment of prescribed fees and licence duration, applies to all ‘smoking products’. [v]
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QLD
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✗ (negative scheme currently; positive scheme legislated to operate from 1 st September 2024) [vi]
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N/A
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✗
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NSW
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✗ (notification scheme) [vii]
Wholesalers of tobacco and e-cigarette products do not need to notify/register with the NSW Ministry of Health but they are required to check that they only sell products to registered retailers. [viii]
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✗
No fee for notification. [ix]
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✗
No fee for notification.
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NT
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✓Any person who intends to sell tobacco products, e-cigarettes or e-cigarette accessories in the Northern Territory requires a licence. [x] The Director may grant a ‘specialist tobacconist’ licence if “85% or more of the average gross annual turnover of the business is derived from the sale of tobacco products” and this licence category must be stated on the licence. [xi]
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12 months for $270;
3 years for $810; or
5 years for $1350. [xii]
Additional $81 for a National police clearance certificate is required. [xiii]
Duration/renewal of licence is every 12 months, 3 years or 5 years. [xiv]
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✓E-cigarettes and e-cigarette accessories are regulated “as if they were tobacco products”. [xv]
E-cigarettes and e-cigarette accessories are subject to the same licencing requirements as tobacco products (application/renewal process, payment of prescribed fees and licence duration). [xvi]
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SA
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✓A person must hold a valid licence to sell tobacco and e-cigarette products in South Australia. [xvii]
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Licence is valid for 12 months (unless surrendered or revoked) and costs $330 annually. [xviii]
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✓ A person must hold a valid licence to sell tobacco and e-cigarette products in South Australia [xix]
E-cigarette products are subject to the same licensing requirements as tobacco products (licence application/renewal process, payment of prescribed fees and licence duration). [xx]
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TAS
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✓A person must hold a ‘smoking product licence’ to sell a ‘smoking product’ in Tasmania. [xxi] ‘Smoking product’ means any tobacco product or any ‘personal vaporiser product’ (including e-cigarettes and e-cigarette accessories). [xxii]
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Licence is valid for 12 months or the term specified on the licence, whichever is the lesser period. [xxiii]
Licence application or renewal fees:
Tobacco and personal vaporiser products$1276.26.90;
sale of personal vaporiser products only (no tobacco products) $640.80. [xxiv]
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✓A licence is required to sell ‘personal vaporiser products’, which includes e-cigarettes and e-cigarette accessories. [xxv]
‘Personal vaporiser products’ are subject to the same licence requirements (application/renewal process, payment of prescribed fees and duration) as tobacco products. [xxvi]
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VIC
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✗ (negative scheme)
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N/A
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✗
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WA
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✓Retailers, wholesalers and indirect sellers of tobacco products must be licenced to sell tobacco products in Western Australia. [xxvii]
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A licence application or renewal must be accompanied by the prescribed application fee and the prescribed licence fee. [xxviii]
Application fees:
Retail licence $82;
Indirect seller’s licence $82;
Wholesale licence $200.
Licence fees:
Retail licence $235;
Indirect seller’s licence $235;
Wholesale licence $575. [xxix]
Duration of a licence is 12 months from the date of issue, and may be renewed annually. [xxx]
Renewal fees:
Retail licence $270;
Indirect seller’s licence $270;
Wholesale licence $640 [xxix]
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Any person selling e-cigarettes and vaping products, or their components may be liable for offences under the Tobacco Products Control Act 2006. [xxxi]
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Relevant legislation
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Tobacco and Other Smoking Products Act 1927 (ACT) – Part 7
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Tobacco Control Act 2002 (NT) – Part 4
Tobacco Control Regulations 2002 (NT) – Part 6
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Tobacco and Other Smoking Products Act 1998 (QLD) [i]
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Tobacco and E-cigarette products Act 1997 (SA) – Part 2.
Tobacco and E-cigarette products Regulations 2019 (SA)
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Public Health Act 1997 (Tas) – Division 3 of Part 4
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Tobacco Products Control Act 2006 (WA) – Part 4
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Authority responsible for administering license scheme
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Access Canberra (Commissioner for Fair Trading)
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Director of Tobacco Control
(Department of Health)
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Chief executive officer of a local government
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SA Health (Health Protection and Licensing Services) as a delegate of the Minister for Health
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Director of Public Health
(Department of Health)
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Department of Health (as a delegate of the CEO of the Department of Health)
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License required for both wholesale and retail?
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Yes
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Retail only
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Yes
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Retail only [ii]
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Yes
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Yes
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Information to be submitted for license application
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Any information that the Commissioner requires the applicant to give to decide the application (or for the administration of the Act). [iii] Requests for information must be in writing.
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National police certificate must be submitted about the individual who is proposed to be the manager of the business to be conducted on the premises to which the license application relates. [iv]
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S 18 Requirements for application
(a) in the approved form; and
(b) if the applicant is a corporation—include sufficient information to identify the directors of the corporation; and
(c) accompanied by the proof of identification; and
(d) if the application relates to a retail or wholesale outlet—identify the location of the retail or wholesale outlet; and (e) if the application relates to an online shop—state the website address of the online shop; and (f) if the application relates to the sale of smoking products at liquor licensed premises—be accompanied by a copy of the liquor licence for the premises; and
(g) accompanied by sufficient information to identify all licences to supply a smoking product by retail or wholesale held by the applicant under a law of the Commonwealth or another State; and
(h) accompanied by the fee, if any, prescribed by regulation.
Note— Two separate applications are required if a person intends to apply for a retail licence and a wholesale licence.
(3) if the application relates to the sale of smoking products at liquor licensed premises, the application must be for a retail licence (liquor).
(4) If the application is made by a partnership, the application must— (a) nominate either of the following for the partnership— (i) the firm-name; (ii) the Australian registered body number; and (b) include identifying information for each partner; and (c) identify any limited partners. [v]
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License applications must be accompanied by any information reasonably required by the Minister. [vi]
The current approved form for license applications does not appear to specifically require any details pertaining to whether the applicant is a fit and proper person to conduct a tobacco retailing business. [vii] However, the Act does provide that the Minister may cancel or suspend a license if the holder is not (or is no longer) a fit and proper person (for any reason). [viii]
In addition, the Commissioner of Police must, on request by the Minister, provide any information required by the Minister for the purpose of determining an application for a license. [ix]
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For the purpose of assessing a license application, the Director may make any enquiries they think fit from any government agency (in any jurisdiction) that performs functions in respect of the regulation of poisons, a smoking product, non-tobacco cigarette, smoke or other smoking-related matter. [x]
The Director may also require the applicant to authorise the Director to obtain police reports detailing any convictions and proceedings taken against the applicant. [xi]
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Applicant must provide any information that the CEO requires in order to properly consider the application. [xii]
The current approved forms for license applications contain a number of questions relating to the applicant’s suitability to hold a license (such as whether the applicant has, in the 10 years prior to the application, been convicted anywhere in the world of an offence involving fraud or dishonesty). [xiii]
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Entities to which a license may be granted
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Individuals and corporations
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Individuals,
partnerships/associations and corporations
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Adult individual, corporation or partnership [xiv]
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Individuals, partnerships or companies
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Individuals (must be a ‘natural person’).
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Individuals, corporations, trustees, partnerships and associations.
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Conditions of license
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A license may be subject to any conditions specified by the Commissioner in the license. In particular, these can include:
- A maximum number of points of sale permitted on the premises;
- The permissible locations of those points of sale. [xv]
Where an applicant has been found to have committed two offences relating to the supply of smoking products to a person under 18 in the two years before the date of the application, the Commissioner may issue a license subject to the condition that the applicant must undertake a specified approved training program regarding the obligations of a licensee. [xvi]
Conditions of a license can be varied/imposed/cancelled by notice in writing from the Commissioner.
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Director appears to have a wide discretion regarding the conditions which may be attached to a license. [xvii]
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15 Conditions of licences
(1) A retail or wholesale licence is subject to conditions imposed on the licence by the chief executive under Part 2 of the Act ( the specific conditions).
(2) A retail or wholesale licence is also subject to the conditions prescribed by regulation ( the general conditions).
The chief executive may impose conditions on the licence that the chief executive considers appropriate for the purpose of ensuring compliance with this Act or mitigating the health risks associated with the sale or smoking products. [xviii]
A licensee may apply to the chief executive to change a specific condition of the retail or wholesale licence. [xix]
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The Minister appears to have a broad discretion to fix conditions of a license. [xx]
In addition, the Act specifically notes that a license may be issued on condition that:
- The licensee must not sell tobacco or e-cigarette products at any other place (aside from that specified in the license); or
- The sale of tobacco and e-cigarette products at the premises be restricted to a particular point (or points) of sale. [xxi]
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Director appears to have discretion regarding the conditions which may be attached to a license. [xxii]
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CEO appears to have a broad discretion regarding the conditions which may be attached to a license. [xxiii]
In addition, conditions or restrictions that are taken to be attached to all licenses (or all licenses of a particular type) may be prescribed by regulation. These can include conditions requiring license holders to provide staff training about the requirements of the Act. [xxiv]
Under the Regulations, it is a condition of all retail licenses that certain instructions be given to employees or agents before the license holder allows the employee or agent to sell tobacco products (e.g. instructions relating the age verification of purchasers). [xxv]
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Grounds for refusal to grant/renew license
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License not to be granted or renewed if Commissioner is satisfied, on reasonable grounds, that:
- The applicant holds another license that is suspended;
- The applicant is disqualified from holding a tobacco license under a disciplinary order;
- The applicant does not sufficiently understand the obligations of a licensee;
- The applicant has been found to have committed two offences relating to the supply of smoking products to a person under 18 in the two years before the date of the application (whether in the ACT or elsewhere)
- The ACAT would have grounds for cancelling the license if the applicant already held one. [xxvi]
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There do not appear to be any specific criteria for the granting of a license (or specific grounds for refusal) prescribed by the regulation. However the regulations imply that a license will not be granted where the national police certificate provided by the applicant suggests that the manager is not a fit and proper person to conduct a tobacco retailing business. [xxvii]
The legislation also provides that a license cannot be granted where the Director is aware of any reason why a license should not be granted. [xxviii]
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S 19 Rejection of particular applications:
The applicant applied for a retail or wholesale licence in the previous 6 months and the application was refused; or
The applicant held a retail or wholesale licence that was cancelled within the previous 6 months.
The chief executive may grant an application for, or a renewal or restoration of, a retail or wholesale licence only if satisfied the applicant is a fit and proper person to be
a licensee. [xxix]
S 20(4) The chief executive must refuse to grant an application for a retail licence (liquor) if the applicant is not the liquor licensee for the licensed premises at which smoking products are proposed to be sold; or the liquor licence for the liquor licensee is not in force when the application is considered.
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Regulations do not appear to specifically set out grounds for refusal of a license. However, the Act implies that a person will not be eligible for a license if the person is not a ‘fit and proper person’. [xxx]
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The Act sets out certain factors which the Director must have regard to when determining an application for a license. These include:
- Whether the applicant is likely to comply with the Act;
- Whether the applicant is over 18 years;
- Whether the applicant is a fit and proper person to fold a license.
In addition, the Director may consider:
- Any convictions and proceedings taken against the applicant (in any Australian jurisdiction);
- The results of any enquiries made by the Director with other agencies across Australia that perform functions regarding the regulation of poisons or smoking products (or other smoking related matters);
- Any other matter the Director considers relevant to the application. [xxxi]
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The Act sets out certain factors which the CEO must have regard to when determining the suitability of the applicant to hold a license. These include whether:
- The applicant has previously been refused or disqualified from holding a license under the Act (or a corresponding law in another jurisdiction);
- The applicant is the holder of a license under the Act (or a corresponding law in another jurisdiction) that has been suspended;
- The applicant has previously been convicted of an offence under the Act (or a corresponding law in another jurisdiction);
- The applicant has, in the 10 years before the application is made, been convicted anywhere in the world of a fraud or dishonesty offence (or is the subject of a pending charge for such an offence);
- The applicant is likely to carry on the activities of a license holder honestly and fairly;
- The applicant is a fit and proper person to hold a license;
- Any other good reason for not issuing/renewing the license. [xxxii]
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Grounds for suspension/cancellation of license
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On application by the Commissioner, the ACAT may exercise its discretion to make orders suspending or cancelling a license, or disqualifying a licensee from holding a license (among other things) on any of the following grounds:
- The licensee has contravened the Act or a condition of the license;
- A license was granted to the person as a result of false or misleading information provided by or on behalf of the licensee;
- The licensee has been convicted of an offence under Part 7 of the Act;
- The licensee has been convicted or found guilty of an offence in Australia punishable by imprisonment for at least one year;
- The licensee has been convicted, or found guilty of an offence outside of Australia which would (if it had been committed in the ACT) be punishable by imprisonment for at least one year;
- The licensee becomes bankrupt or personally insolvent; or
- If the licensee is a corporation, the licensee is being wound up. [xxxiii]
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The Director may cancel or suspend a license if:
- Retailer is found guilty of selling a tobacco product to a child;
- Retailer is found guilty of supplying a tobacco product to a person who the retailer knows (or ought to have known) will supply the product to a child;
- Retailer is found guilty of two or more offences against the Act or regulations;
- Retailer is issued with two or more infringement notices within a 12 month period;
- Retailer has provided the Director with information in support of their application for a license that was false or misleading in a material particular. [xxxiv]
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Division 6:
S 36 Suspension
(1) The chief executive may suspend a retail or wholesale licence if the chief executive reasonably believes any of the following disciplinary grounds apply –
(a) the licence was granted, renewed or restored because of materially incorrect, false or misleading information;
(b) the licensee has contravened a condition of the licence;
(c) the licensee, or an employee of the licensee, has contravened this Act, whether or not the licensee has been convicted of an offence for the contravention;
(d) the licensee attempted to obstruct an authorised person in the exercise of a power under this Act; (e) the licensee failed to comply with a request to make premises available for inspection made under section 43;
(f) the licensee held another retail or wholesale licence that was suspended or cancelled under this Act;
(g) if the licensee is a partnership—a partner held a retail or wholesale licence that was suspended or cancelled under this Act.
S 37 Cancellation
The chief executive may cancel a retail or wholesale licence if the chief executive reasonably believes –
(a) any of the disciplinary grounds mentioned in section 36(1)(a) to (g) apply in relation to the licence; or
(b) the licensee is not a fit and proper person to be a licensee; or
(c) if the licensee is a partnership—1 or more partners is not a fit and proper person to be a licensee; or
(d) the licensee is placed in administration, is wound up or is deregistered under the Corporations Act.
Before cancelling the licence, the chief executive must give the licensee a show cause notice.
s 39 Immediate suspension without show cause notice
This section applies if the chief executive reasonably believes a disciplinary ground exists for suspending or cancelling a retail or wholesale licence under s 36 or s 37; and carrying on the business to which the licence relates is an unacceptable risk to public health.
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The Minister may suspend or cancel a license if the holder of the license:
- Has contravened the Act; or
- Is not (or is no longer) a fit and proper person (for any reason). [xxxv]
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The Director may cancel a license if the holder of the license (or a person acting on their behalf):
- Fails to comply with a condition of the license;
- Is considered by the Director to no longer be a fit and proper person to hold the license;
- Fails to comply with any relevant regulations or guidelines;
- Fails to comply with Part 4 of the Act;
- Is convicted of an offence under Part 4 of the Act;
- Purports to transfer their license to another person. [xxxvi]
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On application by the CEO, the State Administrative Tribunal (SAT) may exercise its discretion to take disciplinary action by making orders suspending or cancelling a license, or disqualifying the license holder from holding a license for such a period as it thinks fit. [xxxvii]
The SAT may take disciplinary action on any of the following grounds:
- The license holder is the subject of a pending charge for an offence under the Act;
- The license holder has breached a provision of the Act or a condition of the license;
- License holder has been convicted of an offence under the Act (or a corresponding law in another jurisdiction);
- License holder is the subject of a pending charge anywhere in the world for a fraud or dishonesty offence;
- The SAT forms the view that the license holder is no longer likely to carry on the activities of a license holder honestly and fairly, or is no longer a fit and proper person to hold a license. [xxxviii]
The SAT may also take disciplinary action if a license was granted or renewed in error as a result of information provided which was false or misleading in a material particular. [xxxix]
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Can information on sales be required?
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No specific power to require provision of sales data.
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On request by the Chief Health Officer, a wholesaler must provide information about the quantity of tobacco products sold or supplied to retailers of tobacco products. [xl]
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No specific power to require provision of sales data.
However, Section 50 allows the chief executive to require licensee to give information that the chief executive to determine whether the licensee is a fit and proper person to be a licensee; or considers necessary for the administration of this Act.
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No specific power to require provision of sales data.
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Yes. Sales data to be provided annually by all retailers. Retailers to report the following information for every smoking product sold:
- Product type
- Brand name
- Product description
- Quantity sold. [xli]
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On request by the CEO, a wholesaler must provide the CEO with the details of:
- any person to whom the wholesaler has sold tobacco products under the license, during a period specified by the CEO;
- the chemical composition of a tobacco product sold or available for sale under the license;
- information about the volume of sales made under the license during a period specified by the CEO. [xlii]
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Inspection/compliance procedures
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Compliance and enforcement is administered by Access Canberra (Commissioner for Fair Trading).
Powers of entry, inspection and seizure are detailed in Part 6 of the Act.
The ACT Civil and Administrative Tribunal (ACAT) has the power to make orders for occupational discipline in relation to a licensee (including orders suspending, cancelling or directing the Commissioner to impose conditions on a tobacco license). [xliii]
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Compliance and enforcement is administered by authorised officers appointed by the Chief Health Officer.
Members of the police force are authorised officers.
Powers of entry, inspection and seizure are detailed in Part 6 of the Act. [xliv]
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Part 11 Monitoring and enforcement is administered by an authorised person appointed by the chief executive officer. Section 170 outlines who may be appointed as an authorised person.
A police officer is an authorised person. [*]
Powers of entry are detailed in Part 11 Division 2 of the Act.
Powers to require personal information and evidence, seize smoking products, and to direct a person to stop smoking are detailed in Part 11 Division 3 of the Act.
Powers of seizure of evidence are detailed in Part 11 Division 4 of the Act.
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Compliance and enforcement is administered by authorised officers appointed by the Minister.
Members of the police force are authorised officers. [xlv]
Powers of entry, search and seizure are detailed in Part 5 of the Act (section 66).
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Compliance and enforcement is administered by persons authorised by the Director (i.e. tobacco control officers employed by the Department of Health).
Police officers also appear to have powers relating to compliance and enforcement under the Act. [xlvi]
Powers of entry, inspection and seizure are detailed in Division 5 of Part 2 of the Act. [xlvii]
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Compliance and enforcement is administered by investigators appointed by the CEO (in practice, investigators appear to be employees of the Department of Health). [xlviii]
Police officers are able to exercise the same powers (and perform the same functions) as investigators. [xlix]
Powers of entry, inspection and seizure are detailed in Division 3 of Part 6 of the Act.
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Licensing of vending machines
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Licenses can no longer be granted or renewed for the use of a tobacco vending machine [l]
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Licenses can be granted for tobacco vending machines.
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From 1 September 2024 liquor licensed premises can only supply tobacco products from one service counter. A tobacco product vending machine can be on site, however, must be located in an area of liquor licensed premises that can only be accessed by staff. A liquor licensee will also need to hold a retail licence (liquor).
Until September 2024 tobacco product vending machines can only be at liquor licensed premises in:
(a) a bar area of liquor licensed premises if the use of each tobacco product vending machine in the area can be
easily observed by persons working behind the bar; or
(b) a casino; or
(c) a gaming machine area, if each tobacco product vending
machine in the area—
(i) can be easily observed by employees of the person in charge of the tobacco product vending machine;
and
(ii) is not more than 1m from a gaming machine in the
gaming machine area. [li]
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Licenses can be granted for tobacco vending machines.
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Licenses can be granted for tobacco vending machines.
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Licenses can be granted for tobacco vending machines.
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Register of licensees publicly available?
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Yes. [lii]
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Yes. [liii]
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The chief executive may publish information contained in the
register of licences, other than personal information, on the department’s
website. [liv]
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Yes. [lv]
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Register must be kept by Director, there does not appear to be any requirement for it to be public. [lvi]
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Yes. [lvii]
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Online sales prohibited?
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No.
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No.
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No.
|
Yes. [lviii]
|
No.
|
No.
|
Thanks to Claire Grace and Melinda Cho, Quit Victoria, for compiling this table.
11B.3 Purpose and benefits of licensing
Licensing has several benefits, as outlined in each of the sub-sections bellow. Requiring a license for tobacco retailers lets governments know who is selling tobacco products in their jurisdiction and allows them to communicate efficiently with those retailers. It also enables them to enact and enforce laws that prevent retailers from promoting tobacco products in their community, particularly in ways that may make it more difficult for people trying to quit or which might trigger those who have already quit to relapse. Most importantly, it allows authorities to enforce laws that help to prevent young people from starting to use tobacco products in the first place. Licensing fees can cover the costs both of administering the licensing program and of enforcing those policies. A license scheme could potentially also assist governments to implement policies that would increase the effectiveness of tobacco control legislation through zoning or establishment of categories of retailer types. Licensing provides governments with a powerful tool for reducing illicit tobacco trade.
11B.3.1 Licensing enables effective communication with all businesses selling tobacco
Licencing provides health departments and local authorities with the names and addresses of sellers. It allows governments to provide accurate and relevant information to retailers regarding their legal obligations. Because licensing occurs every year, retailers can update their contact details and be informed of any changes in laws, and their subsequent obligations. 6 The fees collected from retailers can be used to employ staff to make sure that every business that has been licensed pays their annual fee and updates their contact details.
A comprehensive audit of 1,739 retailers was conducted in 2013 in New South Wales, a state which requires registration of retailers but which does not require retailers to obtain a license or pay fees. The audit identified one unlisted retailer selling tobacco products for every 12.6 listed tobacco retailers. 12 Unlike the simple registration system in place in NSW, a full licensing system could collect fees to finance regular auditing of mailing lists to ensure that all operators selling tobacco are actually licensed and are subject to regular compliance monitoring.
11B.3.2 Licensing facilitates compliance monitoring and enforcement of public health laws relating to the sale of tobacco products
It is an offence in every state and territory in Australia to sell tobacco products or electronic cigarettes to teenagers—see Chapter 5, Section 5.21. Retailers are prohibited from all forms of tobacco advertising, including the display of tobacco products—see Chapter 11, Sections 11.9.2 and 11.9.3 Apart from products dispensed by pharmacists to customers holding a valid prescription, electronic cigarettes and vaping products containing nicotine are also not permitted to be sold in stores in Australia—See Section 18.13.
Licence fees paid by retailers can provide revenue to fund authorities to investigate complaints, to undertake inspections, and to ensure that retailers are adhering to relevant laws, such as not selling to minors. 13 Conditions can be placed on licenses so that breaches of important laws attract not just fines, but also the revocation of authority to sell. 6
Strong tobacco retail licensing has been demonstrated to reduce rates of initiation of both tobacco and e-cigarettes among both teenagers and young adults in the United States. 14
11B.3.3 Licensing has the potential to further increase the effectiveness of public health laws discouraging tobacco use
Preventing young people from taking up smoking is a major objective of tobacco control legislation. Greater visibility 15 and availability of tobacco products is associated with increased uptake by young people. 16 Retail licensing laws could increase the effectiveness of legislation banning promotion and display at point of sale by imposing criteria for the granting of new licences that help to further reduce the opportunities for young people to purchase tobacco products. For instance, licensing authorities could determine that new tobacco licenses would no longer be issued to retailers wishing to start selling tobacco products if they were located close to schools or skate-parks. Similarly, licenses might not be available to operators of sporting clubs, tenpin bowling clubs or cinemas or other venues commonly frequented by young people without parental supervision.
Supporting people who want to quit smoking is the other major objective of tobacco control legislation. Tobacco smoking is highly addictive (see Chapter 6), and the majority of smokers who try to quit will fail on any single attempt (see Chapter 7, Section 7.7). Before the display of tobacco products was banned at point of sale in Australia, many people who had recently quit made unplanned purchases of cigarettes after seeing the large display walls of tobacco products that were ubiquitous in supermarkets and convenience stores. 17-19 Licence conditions could further reduce commercial inducements of smokers to keep smoking by requiring supermarkets selling tobacco products to place counters away from the main checkouts, or by prohibiting the sale of cigarettes where alcohol is served—a situation where many recent ex-smokers are known to be at particularly high risk of relapse. 20-22
The prevalence of smoking is considerably higher in more disadvantaged areas of Australia—see Chapter 9, Sections 9.1 and 9.2. Across stores in 122 postcodes in metropolitan and regional areas, study auditors in NSW found that retailers in low-socioeconomic status (SES) areas were significantly more likely than those in less disadvantaged areas to be unlisted and to breach in-store retailing laws. 12 Licensing of retailers could contribute to reducing tobacco related disparities by ensuring that retailers in disadvantaged areas comply with laws that aim to reduce smoking uptake and relapse. Helping to reduce the high levels of smoking in highly disadvantaged areas could help to reduce financial stress and the intergenerational transfer of poverty among some of Australia’s most marginalised communities.
11B.3.4 Licensing to reduce illicit tobacco sales
Increasing the taxes on tobacco products has been described by The World Bank as the single most effective tool for governments to reduce the use of tobacco products. 23 Evasion of excise duty on tobacco products therefore has the potential to seriously undermine public health. The World Health Organization’s Framework Convention on Tobacco Control to which Australia is a Party 24 requires Parties to the Convention to
-
- monitor and collect data on cross-border trade in tobacco products, including illicit trade, and exchange information among customs, tax and other authorities, as appropriate, and in accordance with national law and relevant applicable bilateral or multilateral agreements;
- enact or strengthen legislation, with appropriate penalties and remedies, against illicit trade in tobacco products, including counterfeit and contraband cigarettes;
- take appropriate steps to ensure that all confiscated manufacturing equipment, counterfeit and contraband cigarettes and other tobacco products are destroyed, using environmentally-friendly methods where feasible, or disposed of in accordance with national law;
- adopt and implement measures to monitor, document and control the storage and distribution of tobacco products held or moving under suspension of taxes or duties within its jurisdiction; and
- adopt measures as appropriate to enable the confiscation of proceeds derived from the illicit trade in tobacco products. (Article 15, Clause 4)
Article 15, Clause 5 calls on Parties to
“… endeavour to adopt and implement further measures including licensing, were appropriate, to control or regulate the production and distribution of tobacco products in order to prevent illicit trade.
The World Bank and the International Monetary Fund also endorse licensing as a means of reducing evasion of excise duty on tobacco. 25, 26 Licensing is a major component of the International Protocol to Eliminate Illicit Trade in Tobacco Products which has been developed by Parties to the WHO Framework Convention on Tobacco Control. 27
11B.4 International precedents for licensing provisions
Many sub-national jurisdictions internationally require some form of tobacco retailer licencing. This includes the majority of states in the United States, most Canadian provinces, Scotland and Ireland, and many jurisdictions in India and Pakistan. 28 The nations of France, Finland, Iceland and Hungary also require tobacco retailers to be licensed. 28
As of June 30, 2021, 29 US states as well as the District of Columbia, the Northern Mariana Islands, Palau, and the US Virgin Islands require retailers to have a license to sell either conventional tobacco products or e-cigarettes over the counter. 5 A further nine states and three US territories require retailers to have a license to sell cigarettes and other non-cigarette tobacco products but not e-cigarettes. 5 All but four states that require retailers to have a license require them to pay a fee. License fees range from $5 in Montana to $800 in Connecticut. 5
Thirty states, American Samoa, the District of Columbia, the Northern Mariana Islands and Puerto Rico allow licenses to either be suspended or revoked if a retailer violates the tobacco retailer licensing requirements; 23 states, the District of Columbia, and the Northern Mariana Islands allow licenses to be either suspended or revoked for violating the e-cigarette retailer licensing requirements; and 18 states, American Samoa, the District of Columbia, Guam, the Northern Mariana Islands, and the US Virgin Islands allow these penalties if retailers sell conventional tobacco products or e-cigarettes to youth. 5
In January 2015, Newburgh, New York adopted a new law mandating that stores selling tobacco products will need a permit and will not be allowed to sell those items if they are within 1000 feet of a school. 29 The Californian city of El Cerrito also enacted a licensing program in 2015 that bans sales of flavoured tobaccos, and limits new tobacco retailers at locations within 1000 feet of existing retailers and 500 feet from schools, recreation centres, libraries and parks. 30, 31 After six years of public advocacy by the Youth Leadership Institute to reduce disparities in tobacco retail outlet density, in 2014, San Francisco debated a proposal to cap the number of tobacco permits to 45 permits per legislative district, which would include retailers of e-cigarettes. 32 San Francisco’s Tobacco Retail Density Policy came into effect on January 18, 2015. 33
Several European countries have also implemented tobacco retailer licensing schemes, with a range of objectives in mind. In Finland, changes in tobacco regulations in 2010 aimed primarily to end the use of tobacco, where less than 5% of the population use tobacco or nicotine products daily by 2030. 34 In Norway, points of sale tobacco products must be recorded in a national registry, in order to facilitate official oversight. 35
In Islamabad, the capital of Pakistan, tobacco retailers must obtain tobacco selling licences. Licensed retailers are prohibited from selling tobacco products to people under 18, from selling loose cigarettes, from advertising tobacco products, and from setting up a tobacco selling point within 50 yards of an educational institution. 36
[i] Sections 47 and 70 of the Tobacco and Other Smoking Products Act 1927 (ACT).
[iii] ACT: Section 49 of the Tobacco and Other Smoking Products Act 1927 (ACT).
[iv] ACT: See Part 7 of the Tobacco and Other Smoking Products Act 1927 (ACT). In particular, see definition of ‘tobacco retailing’ in section 44, ‘smoking product’ in section 3A, and ‘personal vaporiser’ and ‘personal vaporiser related product’ in section 3B.
[v] ACT: Section 47 Tobacco and Other Smoking Products Act 1927 (ACT).
[vii] NSW: Section 39 of the Public Health (Tobacco) Act 2008 (NSW).
[x] NT: Sections 28 and 29(1) of the Tobacco Control Act 2002 (NT).
[xi] NT: Section 29(5) of the Tobacco Control Act 2002 (NT).
[xiii] NT: Regulations 25 and 25A of the Tobacco Control Regulations 2002 (NT). See also Northern Territory Government, Tobacco Licence Fees. Available from https://nt.gov.au/industry/licences/tobacco-licences
[xiv] Section 29 of the Tobacco Control Act 2002 (NT); Regulations 25(2) and 25A(3) of the Tobacco Control Regulations 2002 (NT).
[xv] NT: Sections 4A and 28 of the Tobacco Control Act 2002 (NT).
[xvii] SA: Part 2, Section 6 of the Tobacco and E-cigarette Products Act 1997 (SA).
[xix] SA: Section 6 of the Tobacco and E-cigarette Products Act 1997 (SA).
[xxi] TAS: Sections 74A and 74I of the Public Health Act 1997 (Tas).
[xxii]TAS: Section 3 of the Public Health Act 1997 (Tas).
[xxiii] TAS: Sections 74E, 74F(9) of the Public Health Act 1997 (Tas)
[xxv] TAS: Sections 3, 74A and 74I of the Public Health Act 1997 (Tas).
[xxvi] TAS: Australian Business Licence and Information Service, Smoking Product Licence, Tasmania. Available from https://ablis.business.gov.au/service/tasmania/tobacco-sellers-licence/7413.
[xxvii] WA: Sections 16-18 of the Tobacco Products Control Act 2006 (WA).
[xxviii] WA: Sections 37(1)(c)(iii), 43 of the Tobacco Products Control Act 2006.
[xxix] WA: https://ww2.health.wa.gov.au/Articles/S_T/Tobacco-sellers-licensing.
[xxx] WA: Section 43 of the Tobacco Products Control Act 2006 (WA).
[xxxiii] The term ‘retail’ is defined in section 4 of the Tobacco and E-cigarette Products Act 1997 (SA) to connote sale to a consumer or agent for a consumer.
[xxxiv] Section 47(1) of the Tobacco and Other Smoking Products Act 1927 (ACT).
[xxxv] Section 29 (1)(c) of the Tobacco Control Act 2002 (NT) and reg 25(1) of the Tobacco Control Regulations 2002 (NT).
[xxxvii] See section 10 of the Tobacco and E-Cigarette Products Act 1997 (SA).
[xxxix] Section 11 of the Tobacco and E-cigarette Products Act 1997 (SA).
[xl] Section 77 of the Tobacco and E-cigarette Products Act 1997 (SA).
[xli] Section 74C(5) of the Public Health Act 1997 (Tas).
[xlii] Section 74C(6) of the Public Health Act 1997 (Tas).
[xliii] Section 38(2) of the Tobacco Products Control Act 2006 (WA).
[xlvi] Section 48 of the Tobacco and Other Smoking Products Act 1927 (ACT).
[xlvii] Section 48(3) of the Tobacco and Other Smoking Products Act 1927 (ACT).
[xlviii] See section 29(2)(a) of the Tobacco Control Act 2002 (NT).
[li] Section 9(1) of the Tobacco and E-cigarette Products Act 1997 (SA).
[lii] Section 9 of the Tobacco and E-cigarette Products Act 1997 (SA).
[liii] Section 74C(1)(a) of the Public Health Act 1997 (Tas).
[liv] Section 42 of the Tobacco Products Control Act 2006 (WA).
[lv] Section 41 of the Tobacco Products Control Act 2006 (WA).
[lvi] See regulation 20 of the Tobacco Products Control Regulations 2006 (WA).
[lvii] Section 50 of the Tobacco and Other Smoking Products Act 1927 (ACT).
[lviii] See sections 25(1) and 25A of the Tobacco Control Regulations 2002 (NT).
[lix] See section 29(3)(b) of the Tobacco Control Act 2002 (NT)
[lx] Section 20 (grant); Section 26 (renewal)
[lxi] See section 11 of the Tobacco and E-cigarette Products Act 1997 (SA), which states that the Minister may suspend or cancel a license if the holder is not (or is no longer) a fit and proper person.
[lxii] Section 74C(2) of the Public Health Act 1997 (Tas).
[lxiii] Section 39 of the Tobacco Products Control Act 2006 (WA).
[lxiv] See section 56 of the Tobacco and Other Smoking Products Act 1927 (ACT).
[lxv] Section 38 of the Tobacco Control Act 2002 (NT).
[lxvi] Section 11 of the Tobacco and E-cigarette Products Act 1997 (SA).
[lxvii] Section 74H of the Public Health Act 1997 (Tas).
[lxviii] Section 47(3) of the Tobacco Products Control Act 2006 (WA).
[lxix] Section 47(2) of the Tobacco Products Control Act 2006 (WA).
[lxx] Section 47(2) of the Tobacco Products Control Act 2006 (WA).
[lxxi] See section 53A of the Tobacco Control Act 2002 (NT).
[lxxiii] Section 57 of the Tobacco Products Control Act 2006 (WA).
[lxxiv] See section 58 of the Tobacco and Other Smoking Products Act 1927 (ACT).
[lxxv] See in particular, section 50 of the Tobacco Control Act 2002 (NT).
[lxxvi] See section 63 of the Tobacco and E-cigarette Products Act 1997 (SA).
[lxxvii] See sections 13A and 30A of the Public Health Act 1997 (Tas).
[lxxviii] See section 30 of the Public Health Act 1997 (Tas).
[lxxx] Section 79 of the Tobacco Products Control Act 2006 (WA).
[lxxxi] Section 49A of the Tobacco and Other Smoking Products Act 1927 (ACT).
[lxxxiii] Section 53 of the Tobacco and Other Smoking Products Act 1927 (ACT).
[lxxxvi] Section 73 of the Tobacco and E-cigarette Products Act 1997 (SA).
[lxxxvii] Section 74J of the Public Health Act 1997 (Tas).
[lxxxviii] Section 46 of the Tobacco Products Control Act 2006 (WA).
[lxxxix] The sale of tobacco products and e-cigarette products is prohibited if the order for the product has been placed by mail, telephone, fax, email, internet or other electronic means. See section 30(1)(e) and (2) of the Tobacco and E-cigarette Products Act 1997 (SA).
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